Nicolas and Comcare - [2007] AATA 1858

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1858
ADMINISTRATIVE APPEALS TRIBUNAL )
)A2006/145;
)A2007/1551

GENERAL ADMINISTRATIVE DIVISION )

Re JACQUES NICOLAS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr M. Miller AO, Member
Date16 October 2007
PlaceCanberra

Decision
The decision under review in matter A2006/145 is affirmed.

The reviewable decision in matter A2007/1551 is set aside and in place thereof the Tribunal decides that the amount Mr Nicolas was able to earn from 18 April 2006 to 28 February 2007 is to be calculated at the level of 25 hours per week in relation to his normal weekly earnings.

...........signed...................................
Mr S. Webb, Presiding Member

CATCHWORDS
COMPENSATION - upper limb injury - psychological sequella - incapacity for work - rehabilitation program - extent of compensable incapacity for work - ability to earn in suitable employment - offer of suitable employment conditional on completion of rehabilitation program - interruption of rehabilitation program - reasonable - personal factors affecting ability to earn - decision based on 25 hours per week affirmed - decision based on 30 hours per week set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 19, 37, 67
Telstra v Slater [2001] FCA 149
Pelgrave v Comcare (2002) 36 AAR 1
Comcare Australia v Rowe (2002) 35 AAR 410
Australian Postal Corporation v Nadge (1994) WAG 36; (1994) 10 FC 22
Re Pelgrave and Comcare [2005] AATA 214
Re Sadek and Commonwealth (1988) 14 ALD 769
Migge v Wormald Brothers Industries Limited [1972] 2 NSWLR 29
Comcare v Sahu-Kahn [2007] FCA 15
Canute v Comcare [2006] HCA 47
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION

16 October 2007 Mr S. Webb, Member
Dr M. Miller AO, Member

1.      Jacques Nicolas injured his right upper limb in the course of his employment with the Department of Immigration and Citizenship (formerly the Department of Immigration and Indigenous Affairs) (the Department) in Canberra. He claimed and was paid compensation for incapacity in relation to the injury. He undertook a rehabilitation program and a graduated return to work. Before completing the program there was a crisis involving his son and Mr Nicolas returned to Melbourne to be with his family. He was certified totally unfit for work. He successfully claimed compensation in relation to a psychological sequella but his claim for total incapacity benefits was rejected. Comcare determined that Mr Nicolas was only partly incapacitated for work on the basis that he was able to work 25 and later 30 hours per week in his employment with the Department. Mr Nicolas has challenged these determinations, thus far without success.
2.      The determinations that were the subject of reconsideration decisions[1] and are presently in issue are:
19 April 2006: liability denied for total incapacity on the basis of a deemed ability to earn at the level of 25 hours per week from 15 December 2005 to 17 April 2006;[2]
19 July 2006: deemed ability to earn at the level of 30 hours…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicolas and Comcare

Details

AGLC: Nicolas and Comcare [2007] AATA 1858
Case: [2007] AATA 1858
Decision Date: 16 October 2007

CaseChat Overview and Summary

The matter before the court involved a dispute between Nicolas and Comcare regarding the determination of compensable incapacity for work following an upper limb injury. The case was heard in the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court of Australia. The primary focus was on assessing the extent of Nicolas's incapacity for work, his ability to earn in suitable employment, and the impact of a proposed rehabilitation program on his capacity to work.

The legal issues before the court revolved around the interpretation of the Safety, Rehabilitation and Compensation Act 1988, particularly sections 4, 19, 37, and 67. The central question was whether Nicolas's ability to earn in suitable employment was correctly assessed at 30 hours per week, as determined by the AAT, or whether it should be reduced to 25 hours per week, as argued by Nicolas. The court also had to consider the impact of an interruption in the rehabilitation program and personal factors affecting Nicolas's ability to earn.

The Federal Court, in affirming the AAT's decision, held that the AAT correctly assessed Nicolas's ability to earn in suitable employment at 25 hours per week. The court found that the Tribunal had appropriately taken into account the personal factors affecting Nicolas's capacity to work and the reasonable offer of suitable employment conditional on the completion of a rehabilitation program. The court set aside the AAT's decision to the extent that it had assessed the amount Nicolas was able to earn at 30 hours per week and instead affirmed the Tribunal's decision at 25 hours per week.

In conclusion, the court affirmed the AAT's decision regarding the extent of Nicolas's compensable incapacity for work, determining that it should be calculated based on his ability to earn at 25 hours per week. The court also set aside the AAT's determination that Nicolas's earnings should be calculated at 30 hours per week and replaced it with the Tribunal's affirmed decision.

Orders

Orders of the court

The decision under review in matter A2006/145 is affirmed.

The reviewable decision in matter A2007/1551 is set aside and in place thereof the Tribunal decides that the amount Mr Nicolas was able to earn from 18 April 2006 to 28 February 2007 is to be calculated at the level of 25 hours per week in relation to his normal weekly earnings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JACQUES NICOLAS